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To Get Things Done, Senate Needs To Find Common Ground

August 22, 2017

Last week’s vote in the US Senate on the “skinny repeal” of the Affordable Care Act was as dramatic and tension-filled as any in years. Not only was health care for millions on the line, but also the reputation of the Senate as the greatest deliberative body in the world. At the end of the day, three courageous Republican senators — John McCain of Arizona, Susan Collins of Maine and Lisa Murkowski of Alaska — put principle over party and joined the ranks of the greats who have done the same over the last 230-year history of that august body.

McCain spoke eloquently earlier in the week about the values of the Senate and the importance of senators following time-tested procedures for addressing the challenges facing our nation. While decrying the process that led to consideration of the bill before the Senate, he nevertheless voted to move its consideration to the floor because of his belief in the need for open debate. But in the end, by voting against skinny repeal, a piece of legislation that had no publicly disclosed text even a few hours before the vote, McCain voted for regular order and urged his colleagues to “return to the correct way of legislating and send the bill back to committee, hold hearings, receive input from both sides of the aisle . . . [to] do the hard work our citizens expect of us and deserve.’”

As recent history has shown us, the results of following normal Senate procedures can indeed have far-reaching impact. From 2005 to 2009, when Republican Senator Mike Enzi of Wyoming and my late husband, Democratic Senator Edward M. Kennedy of Massachusetts, were either the chair or ranking member of the Senate Health Education Labor and Pensions (HELP) Committee, the committee followed regular order to report out more than two dozen pieces of legislation that passed the full Senate with broad bipartisan support. At least 17 of those bills ultimately became law.

Enzi later explained the reason for their legislative success: the 80/20 rule. At the beginning of each legislative session, Enzi and Kennedy would list the 80 percent of the issues they agreed on and try to work within that framework. Neither of them got 100 percent of what they wanted, but they made important progress for the benefit of the American people.

In a 2006 oral history interview, Enzi said that while most committees might pass three bills every two years, the HELP Committee did much more. As predicted by Enzi, within weeks of that interview, the HELP Committee reported out several important bills, including a Health IT bill allowing individuals to own their own medical records; renewal of the Ryan White CARE Act for AIDS; and reauthorizations of the Higher Education Act, Head Start, and the Workforce Investment Act. All of those bills ultimately became law.

This extraordinary level of Democratic and Republican cooperation and productivity happened barely a decade ago. And while the level of output of the HELP Committee might have been unusual, regular order in committee work was not, including in the drafting of the ACA. Indeed, in 2009, health care reform legislation was drafted and debated in two Senate committees and three House committees during hundreds of hours of markups. The committees also considered hundreds of amendments, many of which were offered by Republicans and ultimately passed. And though the ACA became law on March 23, 2010, with only Democratic votes, the process was done in the open, through committee and with participation by both parties.

I hope the Senate can return to regular order as McCain has so eloquently called for, and I hope it happens sooner rather than later. I am inspired and feel hopeful when I see students participating in the legislative process at the Edward M. Kennedy Institute in Boston, as they attempt to pass legislation through regular order, reach across the aisle to find common ground, and experience democracy in the way our founders intended. They tell us that they have a new appreciation for the importance of compromise and listening to the other side.

At the Kennedy Institute, we are encouraged to see the next generation of leaders understand what the Senate is supposed to be and what it has been — a place where women and men of good will and both parties come together to address the greatest challenges facing our nation. As my husband once said: “We are Americans. This is what we do. We reach the moon. We scale the heights. I know it. I’ve seen it. I’ve lived it. And we can do it again.”

By their courageous actions, John McCain, Susan Collins, and Lisa Murkowski challenged their colleagues to “do it again.” All of us who believe in the need for a functioning Senate owe them a debt of gratitude.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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